Some of my luckier colleagues at IU Law today did not have their usual Constitutional Law class. That is because their professor, Mr. Patrick Baude, had oral aruments in Chicago before the Seventh Circuit regarding the Indiana wine shipping case, Baude v. Heath. I wrote about the decision before Judge Tinder back in November.
The 16 filed briefs are available here, while an MP3 of the oral argument itself can be heard here. From what I can tell, arguments went well... for the state. Judges Posner and Easterbrook did not seem to like what Professor Tanford included in his brief (chastising him like they were LRW professors). Nor did they like the way he argued, nor the way he listened. Hopefully the court finds for the oeniphiles so that we Hoosiers can be one step closer to having the freedom to buy what we want through the internet and the mail, but I'm not holding my breath for that holding.
I would think it would be beneficial for his class to read some of this stuff. Always good to hear someone you know arguing before a circuit court, even if it is a bit brutal.
2.22.2008
2.15.2008
TOS Reporting Live - IU Pres. McRobbie
In an exciting first for the Oratorical Snob, I am reporting live from the IU Law Moot Court Room, where IU president Michael McRobbie will be holding a press conference regarding the Hoosier Hoops Scandal. Why they chose the law school's moot court room (which can hold a mere 200 or so) rather than anywhere else on campus is unclear. Rumor has it that the idea is to show the university as fair and interested in finding truth rather than supporting the scandalous aspects of the story.
The crowd is mostly reporters, whose trucks and satellite feeds block the street in front. I heard at least one unhappy local screaming from his car that he couldn't get through the street. That, or he was yelling at the school for firing Bob Knight. Inside, many of us may have agreed with that particular angry fellow.
Listening to the various reporters chattering, I have heard that some suppose that this is actually going to be the firing of Coach Sampson. I suspect that it is a bit premature to predict that. The NCAA has been known to get facts wrong in the past, and certainly there is the issue of intent. Either way, IU wrote a very good contract for Coach Sampson that permits them to fire him for just cause. Perhaps they learned their lesson from the litigation following the Bob Knight removal.
The president's posse has just entered the room and sat down in front, alerting us that we have five minutes until the press conference begins. I think that I qualify as press, since this is a live blog feed, right? Additionally, there is a live video stream that I will link to as soon as it is available.
The press conference begins:
President McRobbie won't take questions that involve speculation or hypothetical situations. Obviously he has never been in the law school before.
Athletic Director Greenspan will have seven days to investigate the allegations and determine their truth. Fairness and due process have been mentioned, outside of my ConLaw class. Perhaps he has been in the law school. The Indianapolis firm of Ice Miller and a Business Economics and Public Policy professor will assist him.
McRobbie has not spoken to Sampson since the allegations came out. There have been conversations about resignation, but not with McRobbie. An intern found the original data that lead to the allegations. Sampson's contract does not allow suspension with pay. The only mention of suspension in the document is "without pay". McRobbie does not have the entirety of the contract memorized, but he can quote parts of it fairly well.
After the press conference, I gave some interviews to the press (as one of only a few students in attendance - perhaps they chose the law school because it is so far away from everyone else on campus). If video of those interviews becomes available on the internet, I might link to it. Otherwise, this live report is finished.
The crowd is mostly reporters, whose trucks and satellite feeds block the street in front. I heard at least one unhappy local screaming from his car that he couldn't get through the street. That, or he was yelling at the school for firing Bob Knight. Inside, many of us may have agreed with that particular angry fellow.
Listening to the various reporters chattering, I have heard that some suppose that this is actually going to be the firing of Coach Sampson. I suspect that it is a bit premature to predict that. The NCAA has been known to get facts wrong in the past, and certainly there is the issue of intent. Either way, IU wrote a very good contract for Coach Sampson that permits them to fire him for just cause. Perhaps they learned their lesson from the litigation following the Bob Knight removal.
The president's posse has just entered the room and sat down in front, alerting us that we have five minutes until the press conference begins. I think that I qualify as press, since this is a live blog feed, right? Additionally, there is a live video stream that I will link to as soon as it is available.
The press conference begins:
President McRobbie won't take questions that involve speculation or hypothetical situations. Obviously he has never been in the law school before.
Athletic Director Greenspan will have seven days to investigate the allegations and determine their truth. Fairness and due process have been mentioned, outside of my ConLaw class. Perhaps he has been in the law school. The Indianapolis firm of Ice Miller and a Business Economics and Public Policy professor will assist him.
McRobbie has not spoken to Sampson since the allegations came out. There have been conversations about resignation, but not with McRobbie. An intern found the original data that lead to the allegations. Sampson's contract does not allow suspension with pay. The only mention of suspension in the document is "without pay". McRobbie does not have the entirety of the contract memorized, but he can quote parts of it fairly well.
After the press conference, I gave some interviews to the press (as one of only a few students in attendance - perhaps they chose the law school because it is so far away from everyone else on campus). If video of those interviews becomes available on the internet, I might link to it. Otherwise, this live report is finished.
2008 General Assembly Series: SB65 and Needless Tragedy
Tragedy has befallen the nation yet again. Less than a year after the shootings at Virginia Tech, we have seen four school shootings in less than week. February 8, two students gunned down at Louisiana Tech. February 11, a high schooler shot another during gym class in Tennessee, and a junior high schooler in California is brain dead. Now, tonight, we get word that five people were killed at Northern Illinois University. This one hits particularly close to home, since I'm from northern Illinois, and at one time my brother had considered attending NIU.
I have no idea what is causing the increase in school shootings. Blame it on whomever you wish: parents, the media, the schools, rap music, or any other scapegoat. The fact is that more students are finding recourse through violence in schools. The fact that these shooting sprees tend to end in suicide does not mean that they are intended as suicide missions; I would tend to believe that at least some of these shooters realized what they had done and concluded that the only way out was through suicide.
How fortunate that the Indiana General Assembly happens to have bills before it to help prevent such shootings in Indiana. While nothing can make us 100% safe (even in the law school), I think that the laws the GA might pass would help disincentivize such shootings.
Senate Bill 0065, the so-called Handguns In Public bill is essential, and must be passed quickly, especially with this last week in the forefront of our minds. SB65 would add language to Title 35 that would read, in part:
"A person who possesses a valid license to carry a handgun issued under IC 35-47-2 may not be prohibited from possessing a handgun on land or in buildings and other structures owned or leased by:
(1) the state or a political subdivision of the state; or
(2) a nonpublic elementary school, nonpublic secondary school, or nonpublic postsecondary educational institution."
With the obvious exceptions of airports, prisons, and courthouses, under SB65 no card-carrying Hoosier could be prohibited from having a concealed weapon in a public place. This makes tremendous sense, but let me start by discussing the opposing side.
Opponents are concerned that the bill would mean more violence in schools. After all, if schools have more weapons, only more violence can occur, right? Wrong. First of all, to get a CCW, one must be over 18. That means high school kids (those who would be most likely to go off because of a hormonal imbalance or because a girl turned him down for a dance) would not have access to them, but the teachers (i.e. the people whose responsibility it is to guard the young people) would.
Further, since no person who has been convicted of a felony can get a CCW, the riskiest college-age students would also be prevented. On the other hand, responsible students who took the time to fill out the paper work and get registered would be able to keep weapons, in case, say, a student starts shooting in the middle of a geology lecture. Additionally, professors and administrators could keep a weapon for such times.
In other words, the good guys get armed while the bad guys either don't, or they resort to the same means they do now - that is, they carry them illegally.
On the other hand, a potential gunman would have second thoughts if he knew that any person he pulled a gun on was also armed. Certainly a gunman appearing in front of a class of 165 students to start shooting would fear, knowing that 150 guns were aimed back.
But even if we assume the possibility of deterrence was insufficient to prevent the shooting, the duration of the shooting would be dramatically shorter. The shooting at Virginia Tech went on for 9 minutes, and more than thirty people lose their lives. Imagine after minute 1, or even minute 2, how many lives could have been saved if even one person had possessed a firearm to stop the shooter.
Sadly, a similar bill (SB356) did not pass its third reading, due to a lack of a constitutional majority.
Any reasonable person knows that there is little we can do to deter a potential school-shooter. If he has his mind made up, then he's going to do it, and saying "No Guns on Campus" will mean nothing. But while we can't prevent such shootings easily, we can at least provide some protection for the potential victims of these tragedies. The Senate needs to vote Yes on SB65, and they need to do it now, before any Hoosier blood is tragically spilled.
I have no idea what is causing the increase in school shootings. Blame it on whomever you wish: parents, the media, the schools, rap music, or any other scapegoat. The fact is that more students are finding recourse through violence in schools. The fact that these shooting sprees tend to end in suicide does not mean that they are intended as suicide missions; I would tend to believe that at least some of these shooters realized what they had done and concluded that the only way out was through suicide.
How fortunate that the Indiana General Assembly happens to have bills before it to help prevent such shootings in Indiana. While nothing can make us 100% safe (even in the law school), I think that the laws the GA might pass would help disincentivize such shootings.
Senate Bill 0065, the so-called Handguns In Public bill is essential, and must be passed quickly, especially with this last week in the forefront of our minds. SB65 would add language to Title 35 that would read, in part:
"A person who possesses a valid license to carry a handgun issued under IC 35-47-2 may not be prohibited from possessing a handgun on land or in buildings and other structures owned or leased by:
(1) the state or a political subdivision of the state; or
(2) a nonpublic elementary school, nonpublic secondary school, or nonpublic postsecondary educational institution."
With the obvious exceptions of airports, prisons, and courthouses, under SB65 no card-carrying Hoosier could be prohibited from having a concealed weapon in a public place. This makes tremendous sense, but let me start by discussing the opposing side.
Opponents are concerned that the bill would mean more violence in schools. After all, if schools have more weapons, only more violence can occur, right? Wrong. First of all, to get a CCW, one must be over 18. That means high school kids (those who would be most likely to go off because of a hormonal imbalance or because a girl turned him down for a dance) would not have access to them, but the teachers (i.e. the people whose responsibility it is to guard the young people) would.
Further, since no person who has been convicted of a felony can get a CCW, the riskiest college-age students would also be prevented. On the other hand, responsible students who took the time to fill out the paper work and get registered would be able to keep weapons, in case, say, a student starts shooting in the middle of a geology lecture. Additionally, professors and administrators could keep a weapon for such times.
In other words, the good guys get armed while the bad guys either don't, or they resort to the same means they do now - that is, they carry them illegally.
On the other hand, a potential gunman would have second thoughts if he knew that any person he pulled a gun on was also armed. Certainly a gunman appearing in front of a class of 165 students to start shooting would fear, knowing that 150 guns were aimed back.
But even if we assume the possibility of deterrence was insufficient to prevent the shooting, the duration of the shooting would be dramatically shorter. The shooting at Virginia Tech went on for 9 minutes, and more than thirty people lose their lives. Imagine after minute 1, or even minute 2, how many lives could have been saved if even one person had possessed a firearm to stop the shooter.
Sadly, a similar bill (SB356) did not pass its third reading, due to a lack of a constitutional majority.
Any reasonable person knows that there is little we can do to deter a potential school-shooter. If he has his mind made up, then he's going to do it, and saying "No Guns on Campus" will mean nothing. But while we can't prevent such shootings easily, we can at least provide some protection for the potential victims of these tragedies. The Senate needs to vote Yes on SB65, and they need to do it now, before any Hoosier blood is tragically spilled.
2.01.2008
My Hero and His Fleet
In Constitutional Law, we happen to be discussing the separation of powers. Our discussions in class me reminded me of a story about my favorite President, and as a "TGIF"-type posting, I thought I'd share.
Theodore Roosevelt has got to be my favorite U.S. President. Sure, there are some other good ones, but I really like him. He was, of course, our youngest president, and probably the one with the most exciting life. He seems to be the type of politician that we today lack: a true statesman, but one who gets what he wants, and was quite handy with a gun.
In December 1907, President Roosevelt made the ultimate display of not only American power, but presidential power. It was a rough time. Japan was flaunting its victory over the Russians in the Russo-Japanese War, and the U.S. fleet in the Pacific was still quite small. President Roosevelt assembled a fleet of 16 battleships and their supporting vessels, painted brilliant white, and proposed to send them around the world a la Magellan.
Congress disagreed. They saw it as wasteful, and potentially dangerous. The fleet couldn't pass through Panama, so they would have to travel around South America, then to victorious Japan.
But President Roosevelt was a stubborn man, and, as a trained lawyer, knew that the President had the power to move the military, not Congress. Congress refused to pay for the trip, a correct use of their powers. Roosevelt told Congress that he didn't need their money, and at Congress's dismay, he sent the fleet on their journey on December 16, 1907.
When the fleet reached Japan, Roosevelt went to Congress. He told them that the navy was out of money. Congress was left with the option to fund the return journey or strand the fleet at sea. If they ever wanted the fleet back, they would have to pay for it to circumnavigate the globe. President Roosevelt had used the beauty of the Constitution to smack Congress in the face.
That is why he is my hero.
Theodore Roosevelt has got to be my favorite U.S. President. Sure, there are some other good ones, but I really like him. He was, of course, our youngest president, and probably the one with the most exciting life. He seems to be the type of politician that we today lack: a true statesman, but one who gets what he wants, and was quite handy with a gun.
In December 1907, President Roosevelt made the ultimate display of not only American power, but presidential power. It was a rough time. Japan was flaunting its victory over the Russians in the Russo-Japanese War, and the U.S. fleet in the Pacific was still quite small. President Roosevelt assembled a fleet of 16 battleships and their supporting vessels, painted brilliant white, and proposed to send them around the world a la Magellan.
Congress disagreed. They saw it as wasteful, and potentially dangerous. The fleet couldn't pass through Panama, so they would have to travel around South America, then to victorious Japan.
But President Roosevelt was a stubborn man, and, as a trained lawyer, knew that the President had the power to move the military, not Congress. Congress refused to pay for the trip, a correct use of their powers. Roosevelt told Congress that he didn't need their money, and at Congress's dismay, he sent the fleet on their journey on December 16, 1907.
When the fleet reached Japan, Roosevelt went to Congress. He told them that the navy was out of money. Congress was left with the option to fund the return journey or strand the fleet at sea. If they ever wanted the fleet back, they would have to pay for it to circumnavigate the globe. President Roosevelt had used the beauty of the Constitution to smack Congress in the face.
That is why he is my hero.
1.31.2008
2008 General Assembly Series: SJR7 and the Waste of Tax Dollars
Anyone that has read my post from last February regarding SJR7, the so-called "Indiana Gay Marriage Ban", knows how I feel about the bill. I think it is a broad overreaching of the state government into the private lives of individuals and an attempt to codify bigotry in our most important document. Those opposed to the thought of same-sex marriage can be comfortable that Indiana law still prevents the marriage or civil union of two persons of the same gender. A constitutional amendment is just one more way to ensure that future generations can't become less bigoted than the current one.
I applauded last year when the bill died in the House. But the bill has again passed the Senate, with a vote of 39-9 (practically the same as last year). The bill is stalled in the House, and it looks ready to die at the hands of House Democrats again. That is, unless Rep. Eric Turner (R-Marion) has his way, and manages to have it attached to the same bill capping property taxes. That just shows the shady dealings that go on in politics: attaching a frivolous and hateful bill to one for which the people are desperately crying out.
The arguments for this ban are same arguments we heard for decades regarding interracial marriage. Anti-miscegenation laws were in place since the beginnings of this nation, often appearing in state Constitutions. Loving v. Virginia, 388 U.S. 1 (1967), was the final nail in the coffin of those racist laws. There, the Supreme Court reversed a trial judge's decision that a black woman and white man could not enter the state without being subject to arrest. The trial judge showed his true colors when he stated, "Almighty God created the races white, black, yellow, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." Id. at 3. In other words, interracial marriage was "unnatural." This argument sounds familiar.
It took 103 years, but South Carolina finally removed the prohibition on "marriage of a white person with a Negro or mulatto or a person who shall have one-eighth or more of Negro blood" from its Constitution in 1998. How sad that such bigotry was written into a Constitution for so long. It casts a shadow of shame on the people of the state. Now Indiana wants to do the same.
If the state wants to ban gay marriage in statutes, and that is the will of the people, so be it. Not all of us may agree, but such is the way of politics and legislation. As I stated in my previous post, amending the Constitution really is not something we should do lightly. And besides, haven't we got more important bill to pass right now?
I applauded last year when the bill died in the House. But the bill has again passed the Senate, with a vote of 39-9 (practically the same as last year). The bill is stalled in the House, and it looks ready to die at the hands of House Democrats again. That is, unless Rep. Eric Turner (R-Marion) has his way, and manages to have it attached to the same bill capping property taxes. That just shows the shady dealings that go on in politics: attaching a frivolous and hateful bill to one for which the people are desperately crying out.
The arguments for this ban are same arguments we heard for decades regarding interracial marriage. Anti-miscegenation laws were in place since the beginnings of this nation, often appearing in state Constitutions. Loving v. Virginia, 388 U.S. 1 (1967), was the final nail in the coffin of those racist laws. There, the Supreme Court reversed a trial judge's decision that a black woman and white man could not enter the state without being subject to arrest. The trial judge showed his true colors when he stated, "Almighty God created the races white, black, yellow, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." Id. at 3. In other words, interracial marriage was "unnatural." This argument sounds familiar.
It took 103 years, but South Carolina finally removed the prohibition on "marriage of a white person with a Negro or mulatto or a person who shall have one-eighth or more of Negro blood" from its Constitution in 1998. How sad that such bigotry was written into a Constitution for so long. It casts a shadow of shame on the people of the state. Now Indiana wants to do the same.
If the state wants to ban gay marriage in statutes, and that is the will of the people, so be it. Not all of us may agree, but such is the way of politics and legislation. As I stated in my previous post, amending the Constitution really is not something we should do lightly. And besides, haven't we got more important bill to pass right now?
1.28.2008
Ought the law feel?
In property, we began discussing property rights in the human body, and had a bit of a debate about whether a person should be able to sell their own body parts. I was one of the few on the side of the right to do so. I should note that I believe there are two restrictions on that right: 1) that no person under 18 should have parts sold (either by their own choice or by that of their parents); and 2) that no person should be able to sell an essential body part while still alive. The first restriction prevents the possibility (horrible though it may be) that impoverished persons would have children solely to "part them out". The second restriction prevents one person giving their life for another. All well-and-good to sell blood, or bone marrow, or a kidney. Not okay to sell your heart or stomach.*
While some of the opponents relied on reasonable (though in my opinion, wrong) arguments as to why we should not be allowed to sell body parts, others did not. The concept that such a system would unfairly punish the poor is reasonable. The concept that it could bring about a black market in human organs is reasonable (though, as I pointed out, there is already a $1 billion-a-year black market in organs harvested illegally). The concept that it would make the recipients feel guilt is not reasonable.
That concept was brought up by a good friend of mine. A family member received a heart transplant some time ago, and as a result, she has deep feelings about the right to sell body parts. She feels that the law should prevent selling organs because the recipients would feel guilt about having the life of one individual sacrificed for another (i.e. the recipient of a heart would know that a person died to give him that heart). Let's forget my second qualifier on the right for the moment (that is, that no living person could donate a heart while still alive).
Should the law deal with emotions, sympathy, or empathy? Does such thinking prevent real legal analysis? I tend to believe that emotions have no place in the law. No matter what case you look at, there is an emotional appeal. Every murderer has a mother. Every house has a history. Even suing a cigarette company could become emotional because you are lower the stock price of retired persons who have savings in safe companies like Altria. But these are irrelevant. They only cloud the true legal questions.
The virtue of the law is that it is neutral, that it relies on logic and reason. It does not waver in the winds of poll data. While the emotions may help to ferret out good reasons in an argument, I am of the opinion that they should not, in and of themselves, be arguments.
I would like to hear other opinions on the matter. Should emotions have a place in the law? If you believe so, how can you get around the problems that such emotions place in the debate?
*I will save the greater debate on property rights in the body for another time. Trust me, I'll be back with data points and everything else you could want in such a discussion. But that is beside the point of this post.
While some of the opponents relied on reasonable (though in my opinion, wrong) arguments as to why we should not be allowed to sell body parts, others did not. The concept that such a system would unfairly punish the poor is reasonable. The concept that it could bring about a black market in human organs is reasonable (though, as I pointed out, there is already a $1 billion-a-year black market in organs harvested illegally). The concept that it would make the recipients feel guilt is not reasonable.
That concept was brought up by a good friend of mine. A family member received a heart transplant some time ago, and as a result, she has deep feelings about the right to sell body parts. She feels that the law should prevent selling organs because the recipients would feel guilt about having the life of one individual sacrificed for another (i.e. the recipient of a heart would know that a person died to give him that heart). Let's forget my second qualifier on the right for the moment (that is, that no living person could donate a heart while still alive).
Should the law deal with emotions, sympathy, or empathy? Does such thinking prevent real legal analysis? I tend to believe that emotions have no place in the law. No matter what case you look at, there is an emotional appeal. Every murderer has a mother. Every house has a history. Even suing a cigarette company could become emotional because you are lower the stock price of retired persons who have savings in safe companies like Altria. But these are irrelevant. They only cloud the true legal questions.
The virtue of the law is that it is neutral, that it relies on logic and reason. It does not waver in the winds of poll data. While the emotions may help to ferret out good reasons in an argument, I am of the opinion that they should not, in and of themselves, be arguments.
I would like to hear other opinions on the matter. Should emotions have a place in the law? If you believe so, how can you get around the problems that such emotions place in the debate?
*I will save the greater debate on property rights in the body for another time. Trust me, I'll be back with data points and everything else you could want in such a discussion. But that is beside the point of this post.
1.16.2008
Is Amending the Constitution a Good Idea?
Last night I sat down to watch the State of the State address by Governor Daniels here in Indiana. I found myself pleased with the speech overall. He gave relatively few specific plans and instead acted as the cheerleader-in-chief (promoting Indiana's 8.5 minute transaction time at the BMV, or our declining unemployment rate surrounded by Midwest states who find theirs rising). However, he had to cover the property tax mess, and the way he did it got me thinking.
In his four step plan for solving the "property tax crisis" here in Indiana, he included an instruction that the general assembly should offer "permanent protection against the return of unaffordable taxes, though a permanent, constitutional cap of one percent of a home's value[.]" While I won't pass judgment on whether such a plan is good or not, it brings up the notion of amending the constitution. Ought the constitution be amended in such a way?
Black's calls a constitution "the fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties." Should a constitution then state the design of the General Assembly? Yes. Should a constitution state that the government can tax? Presumably. Should a constitution guarantee the right of citizens to bear arms? Yes. But should a constitution put a specific percentage cap on taxes, or force the Congress and the President to agree on a balanced budget (unless 3/5 of Congress vote to overspend), or to limit pardons between October 1 and January 21 of any presidential election year? Perhaps not.
Such things may be wonderful laws. I have no problem with a law saying that we ought to balance the budget. I have nothing against a law limiting taxes. But such things make for better laws than they do constitutional amendments. I understand that the idea of putting it into a constitution is to make it "permanent". I understand that putting things in a constitution automatically makes them "constitutional" and thus impossible to overturn in the courts. But does such technical verbiage about the operation of government belong in a document ensuring us fundamental rights and powers?
Chief Justice John Marshall didn't seem to think so. In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819), Marshall discusses whether all the powers of the government ought to be found in the Constitution. "A constitution," he writes, "to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. [W]e must never forget that it is a constitution we are expounding."
I couldn't agree more with Marshall. Our goal ought to be to have a constitution that the average citizen can read and understand. To weigh it down with tax brackets, definitions of marriage, requirements of "moments of silence", or any other frivolous notion that could pass in a generation is to dilute the meaning of a constitution as a general document putting forth general principles upon which we can build interpretations and legal reasoning.
So, with all due respect to our great Governor and the various representatives, both in Indianapolis and in Washington, D.C.: keep your hands off my Constitution.
In his four step plan for solving the "property tax crisis" here in Indiana, he included an instruction that the general assembly should offer "permanent protection against the return of unaffordable taxes, though a permanent, constitutional cap of one percent of a home's value[.]" While I won't pass judgment on whether such a plan is good or not, it brings up the notion of amending the constitution. Ought the constitution be amended in such a way?
Black's calls a constitution "the fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties." Should a constitution then state the design of the General Assembly? Yes. Should a constitution state that the government can tax? Presumably. Should a constitution guarantee the right of citizens to bear arms? Yes. But should a constitution put a specific percentage cap on taxes, or force the Congress and the President to agree on a balanced budget (unless 3/5 of Congress vote to overspend), or to limit pardons between October 1 and January 21 of any presidential election year? Perhaps not.
Such things may be wonderful laws. I have no problem with a law saying that we ought to balance the budget. I have nothing against a law limiting taxes. But such things make for better laws than they do constitutional amendments. I understand that the idea of putting it into a constitution is to make it "permanent". I understand that putting things in a constitution automatically makes them "constitutional" and thus impossible to overturn in the courts. But does such technical verbiage about the operation of government belong in a document ensuring us fundamental rights and powers?
Chief Justice John Marshall didn't seem to think so. In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819), Marshall discusses whether all the powers of the government ought to be found in the Constitution. "A constitution," he writes, "to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. [W]e must never forget that it is a constitution we are expounding."
I couldn't agree more with Marshall. Our goal ought to be to have a constitution that the average citizen can read and understand. To weigh it down with tax brackets, definitions of marriage, requirements of "moments of silence", or any other frivolous notion that could pass in a generation is to dilute the meaning of a constitution as a general document putting forth general principles upon which we can build interpretations and legal reasoning.
So, with all due respect to our great Governor and the various representatives, both in Indianapolis and in Washington, D.C.: keep your hands off my Constitution.
1.15.2008
2008 General Assembly Series: SB47 and the Request for Death
It is my favorite time of the year. Not because I like snow or the cold, or because I enjoy the post-Christmas atmosphere. No, this is my favorite time of year because our fine legislators here in Indiana have the opportunity to meet for their short annual session. I'm not entirely sure why I enjoy the General Assembly so much, but I think it has everything to do with my interest in politics and law, my inspired admiration of federalism, and the sheer history in those two chambers in Indianapolis.
As part of this year's General Assembly Series, I wanted to take a closer look at some of the proposed bills that our elected representatives have put forth as being the will of the people. This series will run over the next week or two, and will give me a chance to inform the public about some of the laws being debated.
One of the more interesting proposed bills this session is Senate Bill 0047, authored by Senator Waterman (R, Dist. 39) and now before the Committee on the Judiciary for its first reading. The bill would allow certain incarcerated persons who have been sentenced to: (1) at least 200 years imprisonment; (2) an executed sentence of life imprisonment; or (3) life imprisonment without parole; to request the imposition of a death sentence. Individuals requesting the sentence would be interviewed by a psychologist or psychiatrist to determine whether the person understands the proceedings, is mentally ill or has mental retardation (as defined in IC 35-36-9-2), and whether the person has attempted suicide, among other things. Should they have a change of heart, the incarcerated person has the authority suspend execution and reinstate the original sentence.
While evaluating this bill, we ought to consider three major points: the cost comparison for the taxpayers of the two options, the Constitutionality of the bill, and whether this is a fair punishment in the eyes of the victims.
Many studies suggest that the actual cost of imposing the death penalty is higher than putting a person in prison for life. The Indiana Criminal Justice Institute notes that the major reason that is true is that "[in] Indiana[,] capital cases are more extensively litigated than other murder cases… When the ultimate penalty is at stake, litigation moves into a 'super due process' mode that goes above and beyond the due process invoked by a potential term of years." Goodpaster, Cost Comparison between a Death Penalty Case and a Case Where the Charge and Conviction is Life without Parole, The Application of Indiana's Capital Sentencing Law: Findings of the Indiana Criminal Law Study Commission, 2002, at 122A. The report states that the death penalty costs exceed "life without parole" costs by 34% to 37%. Id. But for cases covered under the new law, the cost of the original trial would be the same as any other non-capital offense.
Admittedly, the cost of the court hearing and psychological testing would drive up the cost of the death penalty. However, the individual would not use prison (and thus taxpayer) resources for the remainder of their life. The report puts the estimated time on death row at 10.5 years, and the average stay for LWOP at 30-40 years. Id at 122E. Further, the report puts the cost of health care for aging prisoners at over $6000 per year. Id at 122D. Assuming that the person elected to have the death penalty shortly after their sentencing, and that the psychological screening took only a short while, the incarcerated person could potentially have received death within one to two years. Compared to thirty years, the taxpayers are saving quite a bit of money. Even if the individual waits five years (and all possible appeals), the turnaround under this bill would be so quick that there would not be a 10.5 year wait for death. Purely economically, incarcerated persons electing the death penalty could save Hoosier taxpayers thousands, while freeing needed space in our already overcrowded prisons.
Of course the major concern ought to be the constitutionality of the bill, both in the Indiana and U.S. Constitutions. After all, a jury of his or her peers found only that the incarcerated ought to be in prison for life, not that he or she ought to be executed. To punish a person more than a jury saw fit might be considered cruel or unusual. I sought comparable laws in other states, but it seems that Indiana is the first to propose one. As such, no such law has been tested by any court for its constitutionality. Some states do allow death row inmates to choose their method of execution, and this has been found to be constitutional. Looking purely at the language of the Constitution, it would seem that the voluntary election of the death penalty can hardly be considered cruel, since the incarcerated is putting the punishment onto himself. Can one be cruel to oneself? Yes, but people with such tendencies would likely be ruled out through the psychological exam. I would tend to believe that such a law is constitutional, but without precedent to guide me, it is frankly a shot in the dark.
Perhaps the concern that some taxpayers and believers in punishment will have is the concern that choosing the death penalty is a cop out. I tend to agree with this view. It is much easier for a person to elect death than to sit in a cell thinking about their crimes, their solitude. Just as we tend to call suicide "the coward's way out," allowing a needle into your arm (should our honorable Supreme Court hold needles still uncruel and usual) could be called cowardly. Passing such a law could be seen as weak on crime.
On the other hand, one of the primary concerns with the death penalty is that it kills innocent people. Yes, without a doubt innocent people have been sentenced to death. However, I cannot believe that an innocent person would elect to choose death, and thus the law would have 100% accuracy. An innocent person clings to hope, believing that they will one day be vindicated and set free. Even those who lose hope couldn't pass the psychological exam, because "I've lost hope" hardly qualifies as a reason to elect death.
I certainly am not suggesting that I like or dislike the law. I think it is inventive, and certainly worth looking at. I simply hope that the Judicial Committee, and eventually the General Assembly, will consider these points as they debate the purpose, wording, and efficacy of this bill.
As part of this year's General Assembly Series, I wanted to take a closer look at some of the proposed bills that our elected representatives have put forth as being the will of the people. This series will run over the next week or two, and will give me a chance to inform the public about some of the laws being debated.
One of the more interesting proposed bills this session is Senate Bill 0047, authored by Senator Waterman (R, Dist. 39) and now before the Committee on the Judiciary for its first reading. The bill would allow certain incarcerated persons who have been sentenced to: (1) at least 200 years imprisonment; (2) an executed sentence of life imprisonment; or (3) life imprisonment without parole; to request the imposition of a death sentence. Individuals requesting the sentence would be interviewed by a psychologist or psychiatrist to determine whether the person understands the proceedings, is mentally ill or has mental retardation (as defined in IC 35-36-9-2), and whether the person has attempted suicide, among other things. Should they have a change of heart, the incarcerated person has the authority suspend execution and reinstate the original sentence.
While evaluating this bill, we ought to consider three major points: the cost comparison for the taxpayers of the two options, the Constitutionality of the bill, and whether this is a fair punishment in the eyes of the victims.
Many studies suggest that the actual cost of imposing the death penalty is higher than putting a person in prison for life. The Indiana Criminal Justice Institute notes that the major reason that is true is that "[in] Indiana[,] capital cases are more extensively litigated than other murder cases… When the ultimate penalty is at stake, litigation moves into a 'super due process' mode that goes above and beyond the due process invoked by a potential term of years." Goodpaster, Cost Comparison between a Death Penalty Case and a Case Where the Charge and Conviction is Life without Parole, The Application of Indiana's Capital Sentencing Law: Findings of the Indiana Criminal Law Study Commission, 2002, at 122A. The report states that the death penalty costs exceed "life without parole" costs by 34% to 37%. Id. But for cases covered under the new law, the cost of the original trial would be the same as any other non-capital offense.
Admittedly, the cost of the court hearing and psychological testing would drive up the cost of the death penalty. However, the individual would not use prison (and thus taxpayer) resources for the remainder of their life. The report puts the estimated time on death row at 10.5 years, and the average stay for LWOP at 30-40 years. Id at 122E. Further, the report puts the cost of health care for aging prisoners at over $6000 per year. Id at 122D. Assuming that the person elected to have the death penalty shortly after their sentencing, and that the psychological screening took only a short while, the incarcerated person could potentially have received death within one to two years. Compared to thirty years, the taxpayers are saving quite a bit of money. Even if the individual waits five years (and all possible appeals), the turnaround under this bill would be so quick that there would not be a 10.5 year wait for death. Purely economically, incarcerated persons electing the death penalty could save Hoosier taxpayers thousands, while freeing needed space in our already overcrowded prisons.
Of course the major concern ought to be the constitutionality of the bill, both in the Indiana and U.S. Constitutions. After all, a jury of his or her peers found only that the incarcerated ought to be in prison for life, not that he or she ought to be executed. To punish a person more than a jury saw fit might be considered cruel or unusual. I sought comparable laws in other states, but it seems that Indiana is the first to propose one. As such, no such law has been tested by any court for its constitutionality. Some states do allow death row inmates to choose their method of execution, and this has been found to be constitutional. Looking purely at the language of the Constitution, it would seem that the voluntary election of the death penalty can hardly be considered cruel, since the incarcerated is putting the punishment onto himself. Can one be cruel to oneself? Yes, but people with such tendencies would likely be ruled out through the psychological exam. I would tend to believe that such a law is constitutional, but without precedent to guide me, it is frankly a shot in the dark.
Perhaps the concern that some taxpayers and believers in punishment will have is the concern that choosing the death penalty is a cop out. I tend to agree with this view. It is much easier for a person to elect death than to sit in a cell thinking about their crimes, their solitude. Just as we tend to call suicide "the coward's way out," allowing a needle into your arm (should our honorable Supreme Court hold needles still uncruel and usual) could be called cowardly. Passing such a law could be seen as weak on crime.
On the other hand, one of the primary concerns with the death penalty is that it kills innocent people. Yes, without a doubt innocent people have been sentenced to death. However, I cannot believe that an innocent person would elect to choose death, and thus the law would have 100% accuracy. An innocent person clings to hope, believing that they will one day be vindicated and set free. Even those who lose hope couldn't pass the psychological exam, because "I've lost hope" hardly qualifies as a reason to elect death.
I certainly am not suggesting that I like or dislike the law. I think it is inventive, and certainly worth looking at. I simply hope that the Judicial Committee, and eventually the General Assembly, will consider these points as they debate the purpose, wording, and efficacy of this bill.
1.10.2008
Back at It
After a long delay for Christmas break, and a warm vacation in Arizona, I am back to post. I would have posted over break, but, to be honest, I was enjoying relaxation and working on getting out résumés for this summer. I spread my net wide, and hopefully my undergraduate record will help me get a few interviews. Several federal agencies received my information, as did a few firms in Indianapolis. I am hoping that I can find a paying job, but I won't be holding my breath.
I am particularly excited by my schedule this semester. Not that there was anything wrong with my schedule last semester, but rather than Ethics and Torts, I get libertarian lovables Property and Constitutional Law. Further, we get into advocacy in Legal Research and Writing, which I think is my strength. I found it difficult to write completely neutrally last semester, and the opportunity to practice oral advocacy will lend itself well to whatever is in my future.
I am keeping up with the election coverage, but I won't get political here other than to say that the candidate I support is gathering far more votes than the "mainstream media" believed he would. Hopefully he will make a splash in Michigan, where he was running ads in Arabic to the Muslim communities there. I was disappointed to see Bill Richardson drop out of the race, since I believed he was the Democrat most qualified to be President, and a man who developed far more innovative solutions to problems (boycotting the Beijing Olympics to put pressure on China to get involved in Africa, for example). He should have gotten more votes, but apparently he wasn't liberal enough to win in the primaries. He also didn't say the words "change" or "hope" enough on stage. C'est la vie.
I am particularly excited by my schedule this semester. Not that there was anything wrong with my schedule last semester, but rather than Ethics and Torts, I get libertarian lovables Property and Constitutional Law. Further, we get into advocacy in Legal Research and Writing, which I think is my strength. I found it difficult to write completely neutrally last semester, and the opportunity to practice oral advocacy will lend itself well to whatever is in my future.
I am keeping up with the election coverage, but I won't get political here other than to say that the candidate I support is gathering far more votes than the "mainstream media" believed he would. Hopefully he will make a splash in Michigan, where he was running ads in Arabic to the Muslim communities there. I was disappointed to see Bill Richardson drop out of the race, since I believed he was the Democrat most qualified to be President, and a man who developed far more innovative solutions to problems (boycotting the Beijing Olympics to put pressure on China to get involved in Africa, for example). He should have gotten more votes, but apparently he wasn't liberal enough to win in the primaries. He also didn't say the words "change" or "hope" enough on stage. C'est la vie.
12.07.2007
Mid-Finals Update
Along with a little bit of snow, finals season has fallen on us here in Bloomington, and I am in the thick of it. My toughest exam, and the one I was most dreading, was Torts on Wednesday. My worry was, perhaps, not founded. Actually, I knew more than I thought I did, which I think is the general consensus about the law among 1Ls. It doesn't feel like we know anything about the law, but suddenly when an outsider asks us a question, we seem to have the answer. None of us are sure when it happened - I suspect that it was over Fall Break - but most of us know the basics of the law, even if we don't think we do.
That said, I have this one recommendation to anyone thinking about coming to law school: take plenty of Economics. They tell you that a couple of courses will make you well suited for law classes, but that is an understatement. In undergrad, I took (I think) five or six Econ courses. On my Torts exam, I think I used each of them at least once. Well, except Labor Economics. I suppose I will have to wait until 2L to apply that one.
I have three exams remaining: Legal Profession, Contracts, and Civil Procedure. I feel the best about Civ Pro, though LP is a take-home exam this Saturday. It finds itself due at the exact time that IU will face off against Kentucky in basketball. I suspect that I will be turning it in early.
One final note. Today we received an e-mail telling us that the faculty has approved a new grading scheme that will benefit us ever so slightly. This makes me breathe easier about Torts, and since the grades are retrofitted, and because I was right on the edge, my Criminal Law grade from the summer should be moving up. I'm not entirely sure how I feel about the new grading system. Sure, it benefits me. But it doesn't do much for the competitive nature of things. Despite the negative image law school competition has, I believe that competition is what drives a vast majority of us. I suppose we'll have to see how it all works in the long run.
That said, I have this one recommendation to anyone thinking about coming to law school: take plenty of Economics. They tell you that a couple of courses will make you well suited for law classes, but that is an understatement. In undergrad, I took (I think) five or six Econ courses. On my Torts exam, I think I used each of them at least once. Well, except Labor Economics. I suppose I will have to wait until 2L to apply that one.
I have three exams remaining: Legal Profession, Contracts, and Civil Procedure. I feel the best about Civ Pro, though LP is a take-home exam this Saturday. It finds itself due at the exact time that IU will face off against Kentucky in basketball. I suspect that I will be turning it in early.
One final note. Today we received an e-mail telling us that the faculty has approved a new grading scheme that will benefit us ever so slightly. This makes me breathe easier about Torts, and since the grades are retrofitted, and because I was right on the edge, my Criminal Law grade from the summer should be moving up. I'm not entirely sure how I feel about the new grading system. Sure, it benefits me. But it doesn't do much for the competitive nature of things. Despite the negative image law school competition has, I believe that competition is what drives a vast majority of us. I suppose we'll have to see how it all works in the long run.
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